On 30th of July 2025, the Order issued by the President of the Competition Council for the implementation of the Guidelines adopted pursuant to the provisions of Article 3 paragraph (5) of the Government Emergency Ordinance No. 46/2022 on measures for the implementation of Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Union, as well as for the amendment and supplementing of the Competition Law No. 21/1996 (“the Guidelines”) has entered into force.
The Guidelines are welcomed as they provide guidance on the method of calculating the value of the investment relevant for the assessment on whether the condition regarding the 2 million euro threshold established by the Government Emergency Ordinance No. 46/2022 (“GEO 46/2022”) for the foreign direct investments, new investments or investments from the European Union subject to screening and approval by the Foreign Direct Investments Screening Commission (“FDISC”) is met, as well as on matters related to the submission of the notification and the notion of control as provided in GEO 46/2022.
However, there is still room for further clarification, particularly with regard to the definition of the areas of activity referred to in Article 2 of the Supreme Council for National Defence Decision No. 73/2012, which must be concerned by the foreign direct investment, new investments or investments from the European Union subject to screening and approval by the FDISC, with regard to the timing of the implementation of investments, as well as with regard to certain procedural aspects.
The method for calculating the value of the investment
According to the Guidelines, the value of the investment represents the value of the funds made available by the investor, consisting in all considerations that have been or will be provided, directly or indirectly, in the context of the investment, including payments through cashless payment instruments, assets, shares, transfers of ownership, debt relief, compensation, services, or other in-kind considerations.
Also, the Guidelines include clarifications regarding the calculation of the value of the investment based on the type of the investment operation:
▸ in the case of acquiring shares or stocks, their purchase price and/or the invested capital is taken into consideration;
▸ in the case of acquiring shareholdings by capital increase or other contributions made without transferring shareholdings, the total value of the contribution (including the nominal value of the shareholdings and the share premium, if applicable) is considered, but only if it leads to a change in control or management or in a new shareholder or stockholder;
▸ in cases where no price is paid, it is determined as the market value of the shareholdings or of the acquired assets established based on the acquirer's own assessment, using market, accounting, or tax values, in that order, depending on the availability of each value, or based on valuation reports.
If the acquisition of shareholdings or assets is carried out by combining some of the methods presented above, the value of the investment is determined as the total invested capital, calculated according to the rules applicable to each operation used.
The Guidelines establish additional rules depending on the type of consideration from the investor and the stages of the investment:
▸ considerations as assets, services, interests or other in-kind considerations are valued at their fair market value as of the date the authorization request is submitted;
▸ in the case of a loan or a financing agreement, the consideration includes the total value of the loan, including the related interest, or of a similar financing agreement, made available to or provided by the investor. An exception is made for loans/financing granted by authorized financial institutions (e.g. banks, non-banking financial institutions) in the ordinary course of business, which do not confer management or control rights over the borrowed entities;
▸ if the transaction involves the conversion of a participation in equity interest previously acquired, the consideration includes the amount initially paid by the investor plus any other considerations related to the conversion;
▸ in cases where the consideration includes securities traded on a stock exchange, the value is determined based on the closing price from the immediately previous trading day before the date the authorization request is submitted or, if no trades occurred that day, based on the most recent published closing price;
▸if the investment is made in multiple stages, the value of the investment is determined by cumulating the value of each stage;
▸ if the investment includes conditional financial contributions, deemed by object, nature or effect as established for the purpose of performing the investment, their value is also included in the total amount of the investment;
▸ when an investment is part of a multi-jurisdictional transaction and the price for the undertaking or assets from Romania is not separately identified, the parties’ own valuations of the relevant undertaking or assets registered or located in Romania are used. If no such allocation or valuations of the price for the undertaking or assets registered or located in Romania exist or are supplied, the value of the investment is deemed equal to the total value of the multi-jurisdictional transaction.
Submission of the notification
The Guidelines provide rather limited clarifications on the documents proving the intention to perform a foreign investment, mentioning that the parties must submit to the FDISC a document, a preliminary agreement, a contract or another agreement that clearly confirms this intention. Nevertheless, it is underlined that the authorization request must be submitted after negotiations are concluded and the essential elements of the transaction (such as the price, financing method, involved parties, and object of the investment) are established, but before the investment is implemented.
Notion of control
The Guidelines reiterate that the notion of 'control' is used in GEO 46/2022 and in the Guidelines with the meaning defined by the Competition Law no. 21/1996, including also the operations leading to the creation of joint ventures, in accordance with Companies Law no. 31/1990, for further clarifications being referred to Guidelines on the concepts of economic concentration, undertaking, full-functionality, and turnover, approved by Order of the President of the Competition Council No. 386/2010, as subsequently amended.
